Judicial Notice
Judicial Notice–An exception to the Hearsay Rule
Courts give priority to evidence provided by witnesses—with direct knowledge of the issues in question—whose evidence can be heard and cross-examined. Hearsay evidence—comprising reported statements that have been made out of court and which cannot be subjected to cross-examination—is generally excluded on the grounds that it is unproven evidence and its admission threatens to undermine the integrity of the legal fact-finding process. “Judicial notice” is an exception to the hearsay rule. Courts may admit hearsay by taking judicial notice of a fact that is so uncontroversial or beyond reasonable dispute that no proof is required. (“How COVID protocols undermined the Rule of Law” pp.5-7)
When judicial notice of facts is taken this means that the facts in question are no longer arguable. When facts are contested, however, it is essential that they be determined through established courtroom procedure based upon evidence that is tested through cross-examination. In keeping with rule of law principles proper to liberal democracy, one party may not simply assert its version of facts over another party.
Inappropriately Taking Judicial Notice of Disputed Facts in a Case before the Courts Threatens the Guardianship Role of Canada’s Judiciary in Relation to Rule of Law Democracy
Even when one party to a dispute before the court is a public institution within the administrative state, it is the role and responsibility of the judiciary to maintain the rule of law by preventing any one party from declaring “this is so because we say it is so”. All parties to the dispute must prove the facts they assert, and those who disagree must be allowed to challenge those facts and present contrary evidence.
Such even-handed judicial guardianship is particularly important during and subsequent to public emergencies. Rule of law democratic governance requires judicial review of government measures that are alleged to violate the Charter rights of Canadians and people living in Canada.
In a rule of law system based on the rights of individuals, freedom of expression and the use of language in all its forms—including oral, print, media, demonstrations of dissent or support, and adversarial debate both inside and outside the courtroom—is the only peaceful tool available to effectively oppose repression and abuse. In a rights-based democracy such as Canada, the rule of law and the law must respect and protect individual rights, maximize the control each individual has over his/her mind and body and restrict state and non-state control over the individual. There must be access by all to courts and other tribunals—that are independent, competent and impartial—to determine rights and charges, to prevent and remedy the violation of rights and the abuse of power by state and non-state actors.